The High Court Upholds the Federal Partial Birth Abortion Ban Act

On April 18, 2007, the Supreme Court handed abortion opponents a major victory, ruling that the Federal Partial Birth Abortion Ban Act does not violate the constitutional right to abortion. The 5-4 decision charts a new direction for the high court and its abortion jurisprudence. Just seven years earlier, the court had struck down a similar Nebraska statute.

In this latest ruling – the result of two related cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood – the court for the first time upheld a law that bans a specific abortion method. Furthermore, the majority in Carhart and Planned Parenthood (together referred to from now on as Carhart) declared the federal statute to be constitutional even though it does not contain an explicit exception in cases in which a woman’s health is in danger. This is a significant departure from earlier abortion rulings, which had required that laws restricting abortion include such a health provision.

The decision also reflects the impact of recent personnel changes on the court, notably the replacement in 2006 of Justice Sandra Day O’Connor with Justice Samuel Alito. O’Connor had provided the fifth and deciding vote in Stenberg v. Carhart (2000), the earlier ruling striking down a Nebraska partial birth abortion ban that was in many ways similar to the law at issue this time. By ruling with the court’s conservative wing, Alito provided the crucial fifth vote needed to uphold the law.

The procedure banned under the act, known in medical circles as dilation and extraction (D&X) or intact dilation and evacuation, involves dilating the cervix, extracting from the uterus all but the head of the fetus, puncturing the skull and removing the brain tissue through suction. This method, which is usually performed after 20 weeks or more of pregnancy, is employed in only a relatively small number of abortions each year. Indeed, roughly 90 percent of abortions occur in the first trimester, and the partial birth or D&X procedure is not even the most common method of terminating later pregnancies.

Even though the partial birth or D&X method is rarely used, it has become a focal point in the abortion debate. Legislation banning the method has been enacted in 31 states. And during the 1990s, Congress twice passed – and President Clinton twice vetoed – a nationwide ban on the procedure. These congressional measures had substantial bipartisan support, perhaps reflecting the fact that a significant majority of the American people (72 percent according to a May 2007 Gallup poll) oppose the procedure. In 2003, Congress again passed a partial birth ban, this time with the support of President Bush, who signed it into law on Nov. 5, 2003. A number of federal district and appeals courts quickly struck down the new law, prompting the Supreme Court, in November 2006, to hear arguments in two of these cases.

The majority opinion in Carhart was penned by Justice Anthony Kennedy, who in 2006 had replaced O’Connor as the person most likely to be the high court’s “swing vote” in very close decisions. Indeed, prior to this ruling, some legal analysts had argued that Kennedy’s recent attempts to position himself between the court’s liberal and conservative wings meant that he could not be reliably placed with either side in the partial birth decision, even though he had voted with the conservative minority in Stenberg and had authored a passionate dissent criticizing the majority for striking down Nebraska’s partial birth ban. But the decision in Carhart made it clear that Kennedy’s views had not significantly changed since Stenberg. The only difference was that now he was writing for the majority.

Kennedy, who along with Alito was joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, devoted a substantial part of his opinion to differentiating the federal statute from the Nebraska law struck down by the court seven years earlier in Stenberg. Indeed, even though he strenuously dissented in Stenberg, Kennedy’s opinion did not overturn that decision and instead attempted to fit the Federal Partial Birth Abortion Ban Act within its parameters.

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